Twitter Challenges Texas AG’s Civil Investigative Demand

A recent lawsuit filed by Twitter against Texas AG Ken Paxton claims that an investigation into the company’s internal content moderation policies violates the First Amendment.

On January 13, Paxton issued a civil investigative demand (CID) to Twitter seeking information related to the company’s policies and procedures for content moderation. In addition to requesting all versions of Twitter’s terms of use, terms of service, and policies and procedures related to content moderation since 2017, the CID directs the company to produce all communications regarding the social media platform Parler. This last request includes both internal communications and external communications with other large technology firms, some of which banned the far-right social media platform from their app stores earlier this year.

In response, Twitter sued Paxton in the U.S. District Court for the Northern District of California to stop the AG’s investigation, which the company considers retaliatory and politically motivated. According to the complaint, “Twitter seeks to stop AG Paxton from unlawfully abusing his authority as the highest law-enforcement officer of the State of Texas to intimidate, harass, and target Twitter in retaliation for Twitter’s exercise of its First Amendment rights.”

Twitter’s argument rests heavily on the timing and circumstances of the CID. On January 6, a Trump rally on the National Mall devolved into a deadly riot that delayed the certification of the 2020 electoral votes. And two days after that, Twitter permanently suspended @realDonaldTrump “due to the risk of further incitement of violence.” Paxton, it turns out, was at the January 6 rally for the former president. He also previously requested that the Supreme Court overturn the 2020 election results in four battleground states. So while it’s no secret that Paxton is a fan of Donald Trump, Twitter argues that Paxton made his loyalty clear in the January 13 news release announcing the CIDs, which condemned several tech companies’ “discriminatory action” of engaging in a “seemingly coordinated de-platforming of the President of the United States and several leading voices.”

The complaint, filed in federal court, details efforts by Twitter to negotiate with Paxton’s office to narrow the scope of the CID. In particular, Twitter “pointed out that [it] had not taken any steps to suspend Parler’s Twitter account or otherwise required Parler to remove any content from Twitter’s platform.” Paxton’s office nonetheless refused to narrow the CID’s scope. To date, Twitter has voluntarily produced about 1,800 pages of public-facing documents. But to prevent the disclosure of “highly confidential, internal documents,” Twitter decided to attack the CID in court on First Amendment grounds.

AG Paxton has filed a motion to dismiss, which will be argued at a hearing on May 7, 2021.

It’s worth noting that, in a recent concurring opinion, Justice Clarence Thomas criticized big tech companies for their power to “cut off speech” and indicated a willingness to reconsider the First Amendment protections afforded to private digital platforms. Thus, if this case reaches the Supreme Court, there is at least one justice unlikely to show much sympathy for Twitter’s plight.

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